Gaitan v. Davis

• Decision Date: 14 August 2020
• Docket Number: Civil Action No. 1:19-cv-056
• Parties: ELIAS GAITAN, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

ELIAS GAITAN, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

Civil Action No. 1:19-cv-056

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

August 14, 2020

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The Court is in receipt of Elias Gaitan's "Petition for a Writ of Habeas Corpus by a Person in State Custody" and his corresponding "Memorandum of Law [in] Support of Petition Application for Writ of Habeas Corpus" (hereinafter, collectively, Gaitan's "§ 2254 Petition" or "Petition"). Dkt. Nos. 1, 15. The Court is also in receipt of Respondent Lorie Davis' "Motion for Summary Judgment with Brief in Support" (hereinafter, Davis' "Motion for Summary Judgment" or "Motion"). Dkt. No. 70. For the reasons provided below, it is recommended that: (1) Davis' Motion be GRANTED; (2) Gaitan's Petition be DISMISSED WITH PREJUDICE; (3) the Court DECLINE to issue a certificate of appealability; and (4) the Clerk of Court be DIRECTED to CLOSE this case.

I. Jurisdiction

The Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. § 2241 and § 2254, which provide that jurisdiction is proper where the inmate is confined or where his state conviction was obtained. See 28 U.S.C. § 124(b)(5); Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2000) (same).

II. Background and Procedural History

On August 23, 2014, in the 357th Judicial District of Cameron County, Texas, a jury convicted Gaitan of: (1) "continuous sexual abuse of young child or children;"¹ (2) "aggravated sexual assault of a child;"² and (3) two-counts of "indecency with a child."³ Dkt. No. 31-8 at 143-46.⁴ The jury assessed punishment at life without parole for the counts of continuous sexual abuse of a young child and aggravated sexual assault of a child, and twenty years of imprisonment for both counts of indecency with a child. Id. at 151. Judgment was entered on September 3, 2014. Id. at 152-153.

The Thirteenth Court of Appeals (the "appellate court") affirmed Gaitan's conviction on November 10, 2016. Dkt. No. 31-4; see also Gaitan v. State, No. 13-15-00661-CR, 533 S.W.3d 19, 32 (Tex. App.-Corpus Christi, Nov. 10, 2016). In affirming his conviction, the appellate court explained that the "challenged statements were not the product of a custodial interrogation," and that it "cannot conclude [Gaitan] successfully defeated the strong presumption that the decisions of counsel [Rebecca RuBane] during trial fell within the wide range of reasonable professional assistance." See Dkt. No. 31-4 at 15. The appellate court denied a motion for rehearing on January 18, 2017. Dkt. No. 31-6 at 16.

Gaitan filed a petition for discretionary review ("PDR") in the Texas Court of Criminal Appeals ("TCCA") on February 22, 2017. Dkt. No. 31-22. That same day,discretionary review was refused for lack of T.R.A.P. 9.4(i)(3) certification. See Dkt. No. 31-22 at 37. On February 15, 2018, Gaitan filed a pro se state application for a writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure⁵ (hereinafter, Gaitan's "Art. 11.07 state habeas application"). Dkt. No. 32-12.

On April 25, 2018, the TCCA ordered the state trial court to determine whether trial counsel RuBane rendered ineffective assistance of counsel due to her health problems. Dkt. No. 31-28 at 1-3. On November 20, 2018, RuBane filed an affidavit denying Gaitan's allegations of ineffective assistance of counsel. Dkt. No. 32-11 at 42-44. On January 25, 2019, the trial court submitted its "Findings of Fact, Conclusions of Law, and Order," and concluded that: (1) Gaitan failed to prove that RuBane's representation fell below an objective standard of reasonableness; (2) his claims are not cognizable; and (3) he waived his right to remain silent when he voluntarily spoke with Detective Samuel Lucio. Dkt. No. 32-11 at 40-41. After conducting an independent review of the record, and the trial court's findings, the TCCA denied habeas relief on February 27, 2019. Dkt. No. 31-29 at 1-2. Gaitan filed the instant § 2254 Petition seeking federal habeas relief on April 4, 2019. Dkt. No. 1.⁶

In his Petition, Gaitan raises three distinct grounds for relief before this Court. Dkt. No. 1 at 6-7. Specifically, he asserts the following claims:

(1) The prosecution engaged in prosecutorial misconduct in violation of the Fourteenth Amendment when it failed to disclose Gaitan's exculpatory claim of innocence, Detective Lucio took advantage of Gaitan's speechimpediment to accuse him of committing the alleged crime, and it dismissed his Art. 11.07 state habeas application as conclusory;

(2) RuBane rendered ineffective assistance of counsel in violation of Gaitan's Sixth Amendment rights when she failed to investigate and introduce evidence about a "3rd party" that Lucio hired,⁷ failed to subpoena witnesses, failed to argue that Gaitan's speech impediment lead to an unfavorable custodial interrogation, and her health problems resulted in poor performance during trial; and

(3) Appellate counsel Joseph Moreno rendered ineffective assistance of counsel in violation of Gaitan's Sixth Amendment rights based on Moreno's alleged close relationship with the prosecution, and his failure to raise certain claims on direct appeal.

Id.

Davis filed her Motion for Summary Judgment on April 20, 2020. Dkt. No. 70. Davis's Motion asserts that Gaitan's claims are either unexhausted and procedurally defaulted or otherwise lack merit. Id. at 1. Additionally, Davis requests that Gaitan's Petition be denied and that a certificate of appealability should not issue. Id. at 39. On May 11, 2020, Gaitan filed a "Rebuttal Motion for a New Trial" (hereinafter, Gaitan's "Response") in opposition to Davis' Motion. Dkt. No. 72. This case is now ripe for review.

III. Legal Standards

A. 28 U.S.C. § 2254

The applicable provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA")⁸ govern petitions brought under 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 335-336 (1997). Pursuant to the AEDPA, a federal court may not grant habeasrelief based upon a claim that was adjudicated on the merits by a state court unless the petitioner demonstrates that the state court's decision: (1) "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); See also Harrington v. Richter, 562 U.S. 86, 97-98 (2011) (same). "This standard is difficult to meet but 'stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.'" Auvenshine v. Davis, No. 4:17-CV-294-Y, 2018 WL 2064704, at *2 (N.D. Tex., May 3, 2018) (citing Harrington, 562 U.S. at 102).

With respect to questions of fact, the state court's factual determinations are presumed correct unless rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). With respect to questions of law, or mixed questions of law and fact adjudicated on the merits in state court, the petitioner must either demonstrate that the state court decision "was contrary to" clearly established Supreme Court precedent, or "involved an unreasonable application of" that precedent. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). Pursuant to the "contrary to" clause, district courts may only grant habeas relief if "'the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than . . . [the Supreme Court] has on a set of materially indistinguishable facts.'" Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Pursuant to the "unreasonable application" clause, district courts may only grant relief: (1) when a state court decision "identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the facts of the particularstate prisoner's case[,]" or (2) when the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407.

B. FED. R. CIV. P. 56

The standard applied when ruling on a motion for summary judgment is set forth in Rule 56 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 56(a). In pertinent part, Rule 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (same). Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

"As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), cert. denied, 531 U.S. 831, 121 S. Ct. 84 (2000). District courts considering motions for summary judgment in ordinary civil cases are required to construe the facts in the case in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at 255. Nevertheless, the application of Rule 56 in the federal habeas context differs from its application in "the average civil case." Torres v. Thaler, 395 F. App'x 101, 106 (5th Cir. 2010) (citing Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other...